African Court Decides First Case on Right to a Nationality

African Court on Human and Peoples’ Rights
Credit: AfCHPR

Last week, the African Court on Human and Peoples’ Rights (AfCHPR) published its first ruling related to the right to nationality in the case of Anudo Ochieng Anudo v. Republic of Tanzania, stating that Tanzania violated Anudo Ochieng Anudo’s right not to be arbitrarily deprived of his nationality, right not to be arbitrarily expelled, and right to be heard by a judge; in finding these violations, the Court relied on Article 15 of the Universal Declaration of Human Rights (UDHR), Article 13 of the International Covenant on Civil and Political Rights (ICCPR), and Article 7 of the ICCPR, respectively. See AfCHPR, Anudo Ochieng Anudo v. Republic of Tanzania, App. No. 012/2015, Judgment of 22 March 2018, paras. 88, 106, 117. At the age of 33, the complainant’s identity documents, issued by Tanzania, were investigated by immigration authorities and found to be based on fake documents, and the complainant was arrested, detained, beaten, and deported to Kenya, which subsequently found him to have irregular status and deported him back. See id. at paras. 4-12. The Court held that States have the burden of proof to show that the complainant does not have citizenship if the State claims the complainant’s identity documents, issued by the State, are flawed or fake. See id. at para. 80. The State failed to fulfill its burden in this case and failed to provide Anudo with an opportunity to contest his deportation. See id. at paras. 88, 106, 115. A lawyer at the Open Society Justice Initiative said the case “exposes the institutional weaknesses, discrimination, and flaws in legal frameworks on the right to nationality.” [OSJI]

The African Commission on Human and Peoples’ Rights (ACHPR) and African Committee of Experts on the Rights and Welfare of the Child (ACERWC) have previously considered the right to a nationality through Article 5 of the African Charter on Human and Peoples’ Rights (Banjul Charter), which grants the right to legal status, and under Article 6 of the African Charter on the Rights and Welfare of the Child (Children’s Charter), which grants the right to nationality. The Court, which has jurisdiction to interpret all relevant applicable human rights treaties to a case, did not consider Article 5 in its decision.

The Case of Anudo Ochieng Anudo v. Republic of Tanzania

In 2012, after Anudo went to a district police station to seek State recognition of his marriage, police confiscated his passport, and subsequently the immigration service launched an investigation into his citizenship status. See id. at paras. 4, 6. Anudo alleged that immigration officers asked him to pay a bribe, which he refused to do. See id. at para. 7. The Minister of Home Affairs and Immigration declared in August 2014 by letter that Anudo’s passport was issued based on fake documents and that Anudo is not a citizen of Tanzania. See id. at para. 8. Unaware of the letter, Anudo went to the immigration office to seek the return of his passport, but upon arrival, he was arrested, detained, and beaten; compelled to sign a notice of deportation and a document stating that he is a Kenyan citizen; and deported seven days after his arrest. See id. at para. 9. In November 2014, Anudo was discovered in Kenya; he was then arraigned, declared to have “irregular status,” and deported to Tanzania. See id. at para. 11. Since then, Anudo has lived in secret between Tanzania and Kenya without basic services. See id. at para. 12.

The AfCHPR found that the revocation of Anudo’s Tanzanian citizenship amounted to a violation of his right not to be arbitrarily deprived of a nationality under Article 15 of the UDHR. See id. at para. 88. The AfCHPR noted that, while the State can determine the conditions for conferring nationality, withdrawal of nationality may not be arbitrary and must conform to international human rights standards. See id. at paras. 74-75, 77-78. To be legal, stripping an individual of nationality must be based on established law, serve a legitimate purpose, done in a manner that is proportional to that purpose, and must allow for procedural guarantees. See id. at para. 79. Anudo alleged that he is Tanzanian by birth because his father and mother are both Tanzanian, and that he had a valid birth certificate that has been confiscated. See id. at para. 63. Further, witnesses testified to Anudo’s parents’ Tanzanian nationality and to Anudo’s birth in Tanzania. See id. at para. 82.

The AfCHPR found that Tanzania held the burden of proof in demonstrating that Anudo is not a Tanzanian national as a justification for depriving him of his nationality. See id. at para. 80. The Court found that the State failed to meet that burden. See id. at para. 88. The Court considered the witnesses’ testimony, the length of time Anudo has enjoyed Tanzanian citizenship and held legal documents issued by Tanzania, and that the State did not contest Anudo’s parents’ nationality. Additionally, the Court noted that the State failed to perform a DNA test requested by Achok Anudo, the father of the applicant, after conflicting witness testimony raised questions about Anudo’s paternity. See id. at paras. 86-87. As the State failed to provide a justification for denying Anudo Tanzanian nationality, the withdrawal of his nationality was arbitrary in violation of Article 15(2) of the UDHR. See id. at para. 88.

The AfCHPR found that Tanzania violated Anudo’s rights not to be expelled arbitrarily under Article 13 of the ICCPR and to have his cause heard under Article 7 of the ICCPR. See id. at paras. 106, 115. The AfCHPR found that the right not to be expelled arbitrarily requires that a State provide an opportunity to contest deportation before a competent authority, and the Court noted that the United Nations Human Rights Committee, the monitoring body for the ICCPR, has found that the State may not deport a citizen to a third country and then prevent his return to his country of citizenship. See id. at paras. 98, 100-101. The AfCHPR held that as Anudo was previously considered a citizen, he could not be deported and prevented from returning, and even if not considered a citizen, his expulsion was arbitrary under Article 13. See id. at paras. 104-06. The Court took note that Tanzania failed to verify Kenyan nationality before deporting Anudo, leaving him in a position of statelessness. See id. at paras. 100-102.

Further, the Court held Tanzania in violation of Article 7 because his arrest and immediate expulsion prevented Anudo from presenting his case, and, the Court found, Tanzania’s domestic law does not provide a judicial remedy for a challenge to the nationality of a citizen by birth. Tanzania, the Court held, has the obligation under international law to remedy this gap. See id. at paras. 114-16.

Right to a Nationality Before the ACHPR and ACERWC

The ACHPR held in 2000 that Botswana violated Article 5 (right to legal status) of the Banjul Charter because the State deported the complainant four times to South Africa, forcing the complainant to live in between the two countries as neither State recognized him as a citizen. See ACommHPR, John K. Modise v. Botswana, Communication No. 97/93_14AR, Merits Decision, 28^th Ordinary Session (2000), paras. 88-89. The ACHPR did not, though, recognize the right to nationality through the right to legal status in Article 5.

In 2011, the ACERWC released the first decision by an African human rights body affirming the right to a nationality, in what was also the first decision issued by ACERWC. It held that Kenya violated the rights to be registered at birth and to a nationality and violated its obligation to prevent statelessness of children by granting citizenship to children born in the State who do not have citizenship in another State under Articles 6(2), 6(3), and 6(4), respectively, of the Children’s Charter. These violations arose out of, the Committee found, Kenya’s failure to provide for the registration of all births and issuance of birth certificates consistently given the barriers and discrimination that Nubian parents face, and Kenya’s practice of forcing Nubian children to wait 18 years to acquire nationality. See ACERWC, IHRDA and OSJI (on behalf of children of Nubian descent in Kenya) v Kenya, Decision 002/COM/002/09, Decision of 22 March 2011, paras. 37-38, 41.

In 2015, the ACHPR issued a merits opinion that also considered Nubian individuals’ right to nationality, and found that Article 5 of the Banjul Charter (rights to dignity and legal status) protects claims to nationality as a legal status. See ACommHPR, The Nubian Community in Kenya v. The Republic of Kenya, Communication No. 317/2006, Merits Decision, 17th Extraordinary Session (2015), para. 140. The ACHPR found that the discriminatory barriers Nubians face to obtaining or replacing identification cards are arbitrary, and that, due to those barriers, Kenya failed to prevent statelessness; therefore, Kenya, the Commission held, violated Article 5 (right to legal status) under the Banjul Charter because it failed to recognize Nubians’ legal status. See id. at paras. 74, 144, 151.

Also in 2015, the ACHPR issued a decision on the Côte d’Ivoire’s alleged violation of the right to a nationality, through Article 5 of the Banjul Charter (right to legal recognition), of the Dioula ethnic group, a group split between Côte d’Ivoire and Burkina Faso. See ACommHPR, Open Society Justice Initiative v. Côte d’Ivoire, Communication No. 318/06, Merits Decision, 17th Extraordinary Session (2015). The ACHPR found that the domestic law on nationality was vague rendering it impossible to determine the requirements for nationality, and that this vagueness in the law allowed for authorities to exercise discretion in granting nationality, often resulting in the discriminatory denial of identity documents for Dioulas and others who were then stateless. See id. at paras. 118-20. Accordingly, the State, the Commission held, violated the right to a nationality as a legal status under Article 5 of the Banjul Charter. See id. at para. 138.